In United States v. Santiesteban-Hernandez, the Fifth Circuit held that generic "robbery," for crime-of-violence purposes, is a theft under circumstances presenting some immediate danger to another person. The question in Tellez-Martinez is whether California's robbery statute, Cal. Penal Code § 211, fits that definition. The court holds that it does.

The California statute defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force of fear." At first blush that might sound pretty close to the generic robbery definition adopted in Santiesteban-Hernandez, except that "fear," for purpoes of the California statute, is defined pretty broadly; it includes "fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." Most states' robbery statutes don't extend to fear-of-injury-to-property. Thus, under the Taylor/Shepard approach, the California statute would be broader than generic robbery.

However, Santiesteban-Hernandez departed from the Taylor/Shepard approach by defining robbery at such a high level of generality, and Tellez-Hernandez holds that California's robbery statue fits within that abstract definiton:

Like the Texas statute at issue in Santiesteban-Hernandez, the California robbery statute involves the misappropriation of property under circumstances involving danger to the person. Regardless of how the robbery occurs, that danger is inherent in the criminal act. Thus, even when the statute is violated by placing the victim in fear of injury to property, the property has been misappropriated in circumstances “involving [immediate] danger to the person.”

The result is that the court affirms the application of guideline §2L1.2's 16-level COV enhancement to Tellez.

Newson pleaded guilty, without a plea agreement, to possession of marijuana with intent to distribute. The Government refused to move for the third acceptance level, candidly admitting that its only reason for doing so was because Newson declined to enter a plea agreement containing an appeal waiver. Newson objected and asked alternatively for a one-level departure. The district court overruled the objection, concluded that a departure was not authorized, and sentenced Newsom to 41 months' imprisonment---the low end of the Guidelines range. The court added that "if the third-level decrease had been available (thus changing the guideline range to 37 to 46 months), it would have imposed a 37-month sentence."

Newson appealed his sentence, challenging the Government's refusal to move for the third level on a couple of grounds. First, he argued that the PROTECT Act's amendment to the acceptance guideline, which made the third point conditional on a Government motion, "violates principles of separation of powers by shifting judicial power to the executive branch." The court rejected that argument, without much discussion. It followed the lead of an unpublished Fifth Circuit opinion which apparently held that since Booker "reaffirmed" Mistretta, "Booker forecloses the claim that §3E1.1(b) results in an unconsitutional violation of the separation-of-powers doctrine." According to the court, "[t]wo other circuits are in accord." (citing unpublished opinions).

Second, Newson argued that the Government's refusal to move for the third acceptance level "was irrational and punitive and not based on a legitimate governmental purpose." He also "contend[ed] that § 3E1.1(b)’s purpose is to prevent a waste of prosecutorial and judicial resources at the trial-court level and that the Guideline contains no nexus between post-judgment proceedings and a defendant’s timely pretrial action." The Government countered that 1) "§ 3E1.1(b) 'can reasonably be interpreted' to encompass not only the expenditure of the Government’s time and effort at the prejudgment stage but also in appellate or collateral-review proceedings," and that "conserving its resources in post-judgment proceedings serves a legitimate governmental interest[;]" and 2) "Newson’s desire to preserve his post-judgment rights shows that he has not 'accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner.'" (quoting guideline commentary).

The court first held that the third level cannot be awarded absent a Government motion. It then agreed with the Ninth and Tenth Circuits that the Government has the same discretion to to file a third-level motion as it does with a §5K1.1 substantial assistance motion. The court also agreed with the Tenth Circuit's conclusion that “a court can review the government’s refusal to file a Section 3E1.1(b) motion and grant a remedy if it finds the refusal was (1) animated by an unconstitutional motive, or (2) not rationally related to a legitimate government end.” Applying that standard here, the court asserted, with little supporting analysis, that "[t]he defendant’s refusal to waive his right to appeal is a proper basis for the Government to decline to make such a motion, as it is rationally related to the purpose of the rule and is not based on an unconstitutional motive."

Newsome also argued that his sentence was substantively unreasonable due to the district court's refusal to impose a below-Guidelines sentence equivalent to what the low end of the range would have been had the Government moved for the third level. The court held that Newsom failed to overcome the presumption of reasonableness because the district court was aware of its authority to depart or vary and saw no reason for doing so.

This decision is wrong, for a couple of reasons. First, the court's conclusion that the Government has discretion whether to move for the third level, just as it does under §5K1.1, is incorrect. That interpretation is not supported by the text of §3E1.1, and is inconsistent with the overall structure of §3E1.1. Recall that prior to the PROTECT Act, the third level was not discretionary; instead, it kicked in automatically once the court made two factual determinations: 1) that the defendant had accepted responsibility under subsection (a), thus entitling him to the first two levels, and 2) that the acceptance was sufficiently timely to allow the court and the Government to conserve resources. The court could not deny the third level on the ground that the defendant had sufficiently accepted responsibility for only two levels worth of relief, rather than three levels.

The post-PROTECT Act version of §3E1.1 is structured the same way. The only difference is in the identity of the fact-finder for fact #2; instead of the Court, it's the Government. There's nothing in the text of §3E1.1 or its accompanying commentary that suggests the PROTECT Act also changed the nature of the subsection (b) determination from a factual finding to a discretionary judgment. Thus, the third-level motion should be seen as more of a certification that the Government is required to make once the factual predicate exists. The guideline's unchanged structure also suggests that the Government's cannot withhold certification of the third level if it doesn't feel the defendant has sufficiently accepted responsbility, just as, prior to the PROTECT Act, a court could not reconsider the acceptance question anew when it came time to determine eligibility for the third level.

Second, even if the third-level motion is discretionary, it does not follow that a defendant's refusal to waive appeal is a legitimate basis for the Government to refuse to file the motion. The guideline and the commentary repeatedly refer to expenditure of resourses for "trial" preparation, not any and all resources that will be expended until the defendant ultimately completes his sentence and any term of supervised release. Although the background commentary does refer to a "defendant [who] has accepted responsbility in a way that ensures the certainty of his just punishment in a timely manner," a defendant's reservation of his right to appeal isn't inconsistent with that goal, especially when most appeals in this situation will involve sentencing error that won't manifest itself until after the defendant has pleaded guilty.

Wednesday, February 27, 2008

Via Grits for Breakfast, we see that Anne Reed at Deliberations is highlighting a new book by University of San Francisco law professor Richard Leo, entitled Police Interrogation and American Justice. According to the book,

[t]he problem of false confession is not limited to a small number of cases. These studies reveal that false confessions are therefore not an anomaly but a systematic feature of American criminal justice, despite procedural safeguards such as Miranda rights and a constitutional prohibition against legally coercive interrogation techniques. . . . Unless police change their procedures for selecting suspects and their interrogation practices, false confessions will continue to occur regularly.

Per Reed, "Leo narrates the development of increasingly sophisticated techniques of police interrogation, techniques that manage to break down a defendant's psychological defenses and build a detailed and compelling story for the jury at the same time."

So if you can lay your hands on a copy, the book may provide valuable background information you can use to prepare for cross-examinaning the agents who interrogated your client, and for countering prosecution arguments that focus on a supposedly damning confession. It may also be chock full of useful fodder for attacking relevant conduct enhancements that are based on nothing more than a statement the defendant allegedly made during post-arrest interrogation.

If you don't feel like shelling out the dough for Professor Leo's book (which Harvard University Press appears to be quite proud of, if the $45 list price is any indication), Volokh Conspirator Orin Kerr helpfully points us to a free article covering similar ground:

Berkeley lawprof Charles Weisselberg has posted a fascinating new draft article, Mourning Miranda, on how the police in California currently implement the Miranda warnings. Weisselberg looks closely at how police officers in California are trained to conduct interrogations, and he concludes that the police interpret Miranda to let them do many of the things that the U.S. Supreme Court found objectionable in 1966 that led the Court to create the Miranda framework.

Although Professor Weisselberg's article is focused on the California fuzz, many of the interrogation techniques he describes in detail are apparently used by law enforcement agencies around the country.

Tuesday, February 19, 2008

U.S. Customs and Border Protection "Inspector's Field Manual" Available On-Line

Thanks to the FOIA efforts of one Charles M. Miller, a California immigration attorney, the U.S. Customs and Border Protection "Inspector's Field Manual" is available for your persual here. As Miller's introduction cautions, "sections . . . may be out-of-date by later changes to the law or policy or may reflect an arguable exposition of the law." Nevertheless, you may find the manual useful when investigating your cases or preparing for trials or motions hearings.

There's some interesting stuff in there. For example, the CBP's understanding of the permissible scope of immigration checkpoint detentions is narrower than the Fifth Circuit's. From section 18.6(e) of the Manual, with emphasis added:

Border Patrol agents can make routine vehicle stops without any suspicion to inquire into citizenship and immigration status at a reasonably located permanent or temporary checkpoint provided the checkpoint is used for the purpose of determining citizenship of those who pass through it, and not for the general search for those persons or the vehicle. Inquiries must be brief and limited to the immigration status of the occupants of the vehicle. The only permissible search is a "plain view" inspection to ascertain whether there are any concealed illegal aliens.

Psychotherapist-Patient Privilege Only Applies to Communications Made with Reasonable Expectation of Confidentiality

Auster is a retired New Orleans police officer. He had been underoing therapy for paranoia, anger, and depression for a number of years. Workers' comp covered the treatment, and an outfit named CCMSI managed his benefit claim.

Over the years, Auster had made threats to various individuals during his therapy sessions. His therapists conveyed those threats to their targets, pursuant to a state-law "duty to warn." Auster knew this, because his therapists told him they were doing that.

Much of Auster's anger stemmed from CCMSI's management of his workers' comp benefits. At one point, CCMSI told Auster that it would stop paying a portion of his benefits. In a later therapy session, Auster apparently responded by threatening "violent retribution" against various people, including CCMSI employees. Auster's therapist relayed the threat to Keith Smith, a CCMSI employee who handled Auster's claim, and warned that Auster had "stockpiles of weapons and supplies to provide the basis for his actions."

Smith went to the authorities, and Auster was arrested. The feds indicted him on a Hobbes Act charge of attempting to extort the property of CCMSI by threatening force and violence via his psychotherapist if his benefits were reduced. Auster moved to dismiss the indictment. Although the court refused to do so, it nevertheless suppressed the communications relayed to CCMSI, citing the psychotherapist-patient privilege.

The Government appealed, and the court of appeals reversed. It held that under the Supreme Court's decision in Jaffe v. Redmond, the privilege only applies to communications made with a reasonable expectation of privacy. Auster lacked that expectation, so the court held, because his therapists repeatedly told him that they would relay his violent threats to the potential victims. Thus, "[b]ecause Auster’s non-confidential statement cannot, as a matter of law, be privileged," the court reversed the suppression order.

As the court acknowledged, there is a circuit split on this issue. The Sixth and Ninth Circuits have held that statements made in psychotherapy sessions may be privileged even in the absence of a reasonable expectation of privacy, for a variety of policy and prudential reasons. Auster found those justifications unpersuasive, and considered Jaffe controlling in any event.

The Tenth Circuit, by contrast, has recognized a "dangerous patient" exception to the privilege. Auster accords with that result, but declined to decide "whether there is a dangerous-patient or crime-fraud exception to the psychotherapist-patient privilege" because of the way it resolved the question.

Tuesday, February 12, 2008

The Fifth Circuit has granted rehearing en banc in United States v. Gomez-Gomez. The panel held that the 1991 version of a California rape statute was not a "crime of violence" for purposes of guideline §2L1.2's 16-level enhancement. It reasonsed that because the offense can be committed by means of retribution (such as a threat to reveal embarrassing secrets about the victim), the offense lacks an element of physical force and also falls outside the generic meaning of a "forcible sex offense."

You'll recall that Judge Jolly concurred in the panel's opinion, but encouraged the court to rehear the case en banc because of what he characterized as the "nonsensical results" produced by the Fifth Circuit's precedent on this issue. He urged adoption of the Third Circuit's approach, which treats any non-consensual sex as forcible sex.

This case may be a stalking horse for a broader issue. Word around the campfire is that the parties have been directed to address whether United States v. Calderon-Pena should be modified or overruled. That's the en banc decision that (correctly) enshrined the Taylor categorical approach as the proper analysis for these COV questions.

That the Fifth Circuit would find a warrantless search permissible as a protective sweep isn't all that surprising, given its ever-expanding view of the circumstances justifying that particular exception to the Fourth Amendment's warrant requirement. What is interesting, though, is that at least one member of the court is apparently still troubled by the drift of the case law in this area. What's also intriguing, although not discussed in so many terms in the opinion, is the fact that undercover officers from the Pharr, Texas police department drove a big rig all the way to Chicago for a controlled delivery of marijuana, and that the whole affair resulted in a prosecution in the Southern District of Texas.

Our facts: acting on a report of suspicious behavior, ICE agents in Pharr found a Chicago-bound tractor-trailer which had marijuana concealed among a load of Mexican pottery. The agents decided to make a controlled delivery, so undercover officers from the Pharr police department drove the rig to Chicago.

After arriving at a Wal-Mart, the officers phoned some guy named "Jim," who told them to hang tight. Shortly thereafter, a couple of vehicles arrived and escorted the officers and the truck to Ray's Auto and Truck Repair, which Mata and his wife owned. "Undisputed testimony described Mata’s business as a small lot enclosed by a cyclone fence with barbed wire and a gate, secured by a lock and chain. The lot contained numerous parked automobiles and a brick building with a door and garage door large enough to accomodate trucks."

The undercovers officers boogied after helping Mata and some others unload the truck inside the garage. "By this time, approximately twenty-five ICE agents and local police surrounded and surveilled Mata’s garage. For approximately two hours, officers watched as numerous vehicles and unknown individuals came and went." Around 2:30 in the afternoon, officers saw a white box truck, which they figured just might have some marijuana in it, leave the garage.

[T]he police, fearing the large amount of marijuana could be lost, gave the “take down” signal, quickly blocked traffic, turned on their emergency lights, identified themselves as police, and ordered the individuals standing outside the gate to stop. As the police approached, at least two men fled down the street and two more fled to the rear of the lot. The ICE agents and police were able to detain these fleeing individuals and arrested 7-10 men in total.

One of the agents immediately ordered a "safety personnel sweep" of the garage, which turned up more drugs and some guns.

Mata was later convicted, following a jury trial somewhere in the Southern District of Texas, of conspiring to possess more than 1,000 kilos of marijuana. (He was acquitted of a 924(c) count. The district court dismissed two other counts---PWID and conspiracy to maintain a drug-involved premises---before trial, without prejudice to re-indictment in the District of Illinois.)

Mata appealed the district court's denial of his motion to suppress the drugs and guns found during the post-take-down sweep of his garage. But the court of appeals held that it was a lawful protective sweep. The departure of the white box truck created exigent circumstances justifying the officers' entry onto the premises, and the officers hadn't created the exigency by choosing to stop the truck at the gate before it left the property. The officers also had a reasonable, articulable suspicion that there might be dangerous folks on the scene because 1) the officers had made a controlled delivery of nearly 1,300 kilos of marijuana a couple of hours earlier, 2) people were coming and going during that time, so officers didn't know exactly how many were there at any given time, 3) the officers saw some people "conducting counter-surveillance" (i.e., "keeping an eye out for law enforcement"), and 4) the suspects scattered when the "take-down" signal was given, and two of them ran behind the building. More generally, the court concluded that "[t]his case is . . . similar to cases from [inside and] outside this circuit upholding a protective sweep incident to a raid on a distribution or manufacturing center for narcotics."

*Interestingly, the opinion notes that "Judge Jolly joins in the judgment only." There's no explanation given, but I suspect it's for reasons similar to those he gave in a concurring opinion in another protective-sweep case, United States v. Maldonado:

I concur because the majority opinion is not plainly inconsistent with our precedent. It does seem, however, that we are coming close to establishing a rule that any yard arrest involving a drug operation can justify a protective sweep of the residence, which would allow an intended exception to the Fourth Amendment to become the rule.

It's too bad this opinion is unpublished. The actual fact pattern isn't likely to come up all that often, but the opinion is still valuable for its rejection of the type of speculative reasoning that is used all too often to justify Guidelines enhancements.

Balderas was one of a group of aliens who had been smuggled into the U.S. One day the smugglers offered to discount his smuggling fee if he would drive a car containing some of the other aliens. Balderas agreed and, following a lead car driven by the coyotes, drove north in a Ford Taurus with three other aliens in the passenger compartment. Unbeknowst to Balderas, there were also three aliens concealed in the trunk. Balderas and the other aliens were caught after a Texas DPS trooper pulled the car over for speeding on U.S. Highway 59.

Balderas later pleaded guilty to alien transportation for gain. The probation officer recommended a 2-level reckless endangerment enhancement due to the aliens in the trunk. Balderas objected, asserting that he was given the keys to an already-loaded car, and that he didn't know the aliens were in the trunk. The probation officer responded "by stating that '[s]ince the defendant traveled with this group of aliens, it is possible that the defendant was present when the aliens were being loaded and that he would have seen some aliens get into the trunk. Additionally, during an alien smuggling offense, it is not uncommon and it is reasonably foreseeable, that aliens would travel in any available space, including the trunk.'" At sentencing, "[t]he district court rejected Balderas's objection and stated that it was 'relying on the presentence report' to establish that he knew or should have known that aliens were in the trunk of the Taurus."

Balderas challenged the enhancement on appeal. The Government countered that Balderas knew or should have known the aliens were in the trunk based on the following circumstances: "(1) Balderas traveled with a group of aliens for several days prior to driving the vehicle, (2) he was present during daylight hours at the location where the aliens were loaded into the Taurus, . . . (3) there is no evidence that he was not present when the three males got into the trunk of the car[,]" and (4) "even if Balderas did not witness the entry of the aliens into the trunk of the Taurus, he should have known that aliens were in the trunk because three of the aliens who had been traveling in his group were not with him in the passenger compartment of the Taurus."

The court rejected the Government's arguments, pointing out that there was no direct evidence of Balderas's knowledge. There was also some evidence tending to support Balderas's credibility and version of events. Ultimately, the court's "review of the evidence in the record reveal[ed] only the mere possibility that Balderas knew or should have known that aliens were loaded in the trunk of the Taurus. And, a mere possibility is insufficient to meet the government’s burden of proving, by a preponderance of the evidence, that Balderas intentionally or recklessly created a substantial risk of death or serious bodily injury under 2L1.1(b)(6)."

The court also rejected the Government's alternative argument "that Balderas should be held accountable for transporting aliens in the trunk of the Taurus because, under U.S.S.G. 1B1.3(a)(1)(B), a defendant is responsible for 'all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,' regardless of whether the defendant was charged with conspiracy." As the court pointed out, that provision only applies to conduct that occurs after the defendant joins the conspiracy. Here, there was no evidence that Balderas agreed to drive the car before the aliens were loaded into the trunk, so the relevant conduct guideline didn't apply.

You can't cite this opinion as binding authority, of course. But you can certainly rely on it as persuasive authority when arguing that speculative possibilities aren't enough to carry the Government's burden of establishing guideline-enhancing facts by a preponderance of the evidence. Especially anytime the probation officer or the Government is relying on the argument that, "There's no evidence he didn't know."

Thursday, February 07, 2008

As you'll recall, the Fifth Circuit held in United States v. Peltier that "a defendant's failure to object at sentencing to the reasonableness of his sentence triggers plain error review." That decision was wrong for a variety of reasons, but that's not the point of this post, which is instead about the circuit split that has developed on this issue and what that means for counsel representing defendants at sentencing. Peltier mentioned the split, but didn't discuss it, or the plain error question, in great detail. For that, you should read the Sixth Circuit's very interesting en banc decision today in United States v. Vonner, No. 05-5295 (6th Cir. Feb. 7, 2008).

Vonner pleaded guilty to distributing crack. The PSR, which Vonner didn't object to, calculated his Guidelines range at 108 to 135 months. At his sentencing hearing, which was held just three weeks after Booker was decided, Vonner asked for a downward variance based on several factors. The district court, after giving a skimpy statement of reasons, imposed a within-Guidelines sentence of 117 months. "After announcing the sentence, the court asked Vonner’s counsel whether 'the defendant [has] any objection to the sentence just pronounced not previously raised.' Vonner’s counsel responded, 'No, Your Honor.'" (That last question was required by United States v. Bostic, a pre-Booker decision from the Sixth Circuit.)

Vonner appealed, challenging both the reasonableness of the length of his sentence, as well as "the district court['s] fail[ure] to explain in sufficient detail why it rejected some of his arguments for a downward variance." The en banc majority held that although Vonner's request for a downward variance preserved his substantive reasonableness challenge, his failure to object to the district court's explanation after the sentence was imposed subjected his procedural reasonableness challenge to plain error review. The court was careful to point out (contra Peltier) that defendants are not required to object to the "reasonableness" of the sentence in the district court, because that's the appellate standard of review, not the standard the district court is required to follow. As the majority framed it, the question is whether the specific ground on which the defendant is challenging his sentence was presented to the district court. Thus, if a defendant argues that his sentence is substantively unreasonable on grounds other than those he urgued in the district court, then the court of appeals will review only for plain error. Likewise, if a defendant failed to object to a procedural defect in the sentencing process (such as an error in calculating the Guidelines, or a failure to provide an adequate statement of reasons), then plain error review applies.

The majority opinion drew three sharp dissents, which cover a lot of ground. The principal point of disagreement concerned the "divisibility" of reasonableness review. According to the dissenters, although there are both substantive and procedural components to reasonableness review, Gall and other decisions make clear that "these two inquiries are simply different aspects of the overall reasonableness review required by Booker." It's a single analysis that evaluates both the procedural and substantive reasonableness of the sentence. Thus, to preserve a reasonableness challenge a defendant simply needs to present his § 3553(a) argument (which would include any objections to the PSR or to Guidelines calculations) to the district court. Having done so, he should have no further obligation to object to the procedural reasonableness of the sentence after it has been imposed.

Another dissent catalogued the "strikingly different approaches adopted by the circuits," plaintively expressing "hope that the Supreme Court chooses to resolve the issue of whether defendants must object after the district court has imposed a sentence to preserve some, any, or all, of their Booker reasonableness claims."

Okay, so what does all of this mean on the ground? Well, in light of Peltier, it would be prudent to object to the length of the sentence after it's imposed. That should preserve at least a substantive reasonableness challenge. And even though Vonner isn't binding precedent in our circuit (and conflicts with Peltier in some respects), you should probably also specifically object to any procedural defects that you haven't already objected to by the time the sentence is imposed. To review, Gall provided a list of possible procedural flaws,

such as failing to calcluate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence---including an explanation for any deviation from the Guidelines range.

Now you will have already made some of those objections (such as an objection to the Guidelines calculations) before the sentence is imposed, and there's no need to re-urge them after the district court has ruled on them. But you may need to specifically raise others (like an inadequate explanation for the chosen sentence) after the sentence is imposed. That's not to say that Vonner (or Peltier) is right, but considering the fact that there's no telling how the Supreme Court might resolve this question (if it resolves it at all), prudence dictates that you dot all the I's and cross all the T's, lest your client's appeal get poured out on plain error review.

This opinion is important for its clarification of a couple of points concerning the Taylor/Shepard categorical approach. First, it explains that resort to Shepard-approved documents under the "modified" categorical approach is permissible only when the statute underlying the prior conviction contains either multiple subsections, or a series of disjunctive elements. Thus, a court cannot determine that a recidivist enhancement applies based on a factual allegation contained in the charging papers, if that allegation wasn't necessary to identify which elements or which statutory subsection underlay the conviction. That point hasn't always been clear in the Fifth Circuit's discussions of this issue.

Second, Gonzalez-Terrazas offers a further illustration of what the record of a prior conviction---particularly California abstracts of judgment---does and doesn't establish. The lesson: a document pertaining to a probation revocation may be sufficient to establish the fact of the conviction for which a defendant was placed on probation, and may even be enough to idenfity the particular statute of conviction. But it likely will not suffice to establish the circumstances of that conviction, or to prove that the defendant pleaded guilty to a particular charging instrument.

Gonzalez-Terrazas confronts these questions in the context of a prior California burglary conviction under Cal. Penal Code § 459, for which Gonzalez got a 16-level COV enhancement under guideline §2L1.2. In United States v. Ortega-Gonzaga, the Fifth Circuit held that § 459 isn't generic "burglary" or "burglary of a dwelling" because the statute doesn't require that the entry be unlawful or unprivileged. In this case, the state indictment alleged that Gonzalez "willfully and unlawfully" entered a house, even though that's not an element of the offense. What result?

Gonzalez-Terrazas holds that the conviction still isn't generic burglary of a dwelling (and therefore not a guideline §2L1.2 COV), for two reasons. First, as a footnote in Ortega-Gonzaga noted, the Taylor/Shepard modified categorical approach permits a court look to the charging papers and so forth only to identify which statutory subsection or which disjunctive elements the conviction satisfied. In the case of § 459, there is no separate subsection or disjunctive element pertaining to "unlawful" entry, so a court cannot use the modified categorical approach to pare down the indivisible "entry" element of the offense. The court also rejected the Government's argument that Ortega-Gonzaga's discussion of this point was dictum, observing that "it was one of two alternative holdings, and each is binding." So in light of Ortega-Gonzaga, the district court erred in applying the enhancement.

(What this means, of course, is that a conviction under Cal. Penal Code § 459 is never generic burglary or burglary of a dwelling. And if you're wondering, "What about United States v. Murillo-Lopez?", then see the discussion in footnote 2. In short, the defendant in that case didn't object to consideration of the charging papers in that case, and the question had to do with the nature of the structure burgled---a matter involving disjunctive elements---rather than the "entry" element. Plus, the Government abandoned any reliance on Murillo-Lopez by failing to cite or mention it here.)

Second, the court held that even if "it were appropriate in this case to look beyond the elements of the state offense," the Government failed to meet its burden of showing that the enhancement applied. The only document the Government offered to establish the conviction was a California abstract of judgment, which wasn't even the abstract for the burglary conviction. "Instead, it [was] an abstract of judgment for a probation revocation, which incidentally list[ed] the prior burglary conviction." And we know from prior Fifth Circuit cases that "California abstracts of judgment are of questionable reliability." Thus, "[a]lthough the abstract may be sufficient to establish the mere fact that there was a prior burglary conviction, the abstract offers no clue as to the circumstances of the plea, such as to which document the defendant actually pleaded or to which facts related to the underlying offense the defendant admitted."

An Offer to Sell Drugs Is Not a "Controlled Substance Offense" Under Guideline §4B1.2(b); Interesting Discussion of Plain Error

We know from United States v.Garza-Lopez that an offer to sell drugs is not a "drug trafficking offense" under guideline §2L1.2. And we know from United States v. Gonzales that a Texas conviction for delivery of a controlled substance isn't categorically a §2L1.2 DTO because the definition of "delivery" applicable to the Texas drug statutes includes an "offer to sell." Price holds that the same thing goes for the "controlled substance offense" definition found in guideline §4B1.2(b), because it's substantively identical to §2L1.2's DTO definition.

That much of Price is unremarkable, since it's simply a straightforward application of Gonzales. The more important part of the opinion concerns the third prong of plain error review. And for that, we need some background.

Price was convicted of being a felon in possession of a firearm. The district court applied a base offense level of 24 under guideline §2K2.1(a)(2), which applies "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." After all was said and done, the Guidelines slide rule spit out a range of 110 to 120 months. The district court sentenced Price at the bottom of the range.

Now as it turns out, one of Price's two priors was a Texas delivery of cocaine. His indictment for that offense alleged an offer-to-sell as one of the possible means of delivery, and the judgment didn't specify which means of delivery his guilty plea admitted. Price raised this on plain error review. Following Gonzales, the court of appeals held that the offense didn't constitute a CSO.

Absent the error, Price would have been looking at a Guidelines range of no more than 92 to 115 months. The court held that even though the 110-month sentence Price received was within that range, the error nevertheless affected Price's substantial rights, the third element of plain error. And on this point the court acknolwedged a "potential conflict" in the Fifth Circuit's pre- and post-Booker case law. Prior to Booker, the court held that there's no plain error if the district court could impose the same sentence on remand---an objective inquiry. After Booker, in United States v. Villegas, the court adopted a subjective approach, holding "that the question of substantial rights turns on 'whether the defendant can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, [the defendant] would have received a lesser sentence.'"

The court here ultimately held that Price demonstrated “at least a reasonable probability that the district court would have imposed a lesser sentence if it had properly applied the Guidelines[,]” for two reasons: 1) although Villegas didn't involve overlapping ranges, the spread between the bottom end of the correct and erroneous ranges was greater in Price's case than it was in Villegas, and there was plain error in Villegas; and 2) the district court here imposed the low end of what it erroneously believed to be the correct range. The court added that "with more of an overlap between correct and erroneous sentencing ranges, we would face a closer question of 'substantial rights' and would have to address the potential conflict between the pre- and post-Booker objective verus subjective inquiries that we raised in Jones. We leave that for another day."